Oil Capital starts off with a false argument that reducing the word "jurisdiction" to its legal meaning renders it merely decorative. Jurisdiction is all about government power and being subject to that power. Being subject to the coercive power of the government is not mere "decoration."
What about the quotes cited? Legislative history is only admissible to resolve ambiguity, not to disprove the clear meaning of the statute or law in question. Since the term "jurisdiction" had a clear meaning in 1868 that has not changed since, the meaning of "subject to the jurisdiction thereof" would not be affected by any number of speeches. But assuming that there is at least some validity to Oil Capital's concerns, does the reference to Indian tribes have any relevance to illegal immigrants today?
In
Elk v. Wilkins, The Supreme Court decided in 1884 that a person born on an Indian reservation within U.S. territory was not entitled to citizenship under the 14th Amendment. The court focused on the fact that the tribes were distinct entities with which the United States had treaty relations. The court described them as "alien nations" and "distinct political communities." There was some discussion about the allegience the tribal members owed to the tribes. It is important to separate out allegiance from jurisdiction.
Allegiance is not and has not been an attribute of jursidiction. It is an atribute of citizenship. Neither legal nor illegal aliens owe "allegiance" to the United States, but both are subject to laws of the United States or the States. Being subject to the laws of a place is the essence of jurisdiction. On the other hand, if the offspring of one who has no allegiance is to have birthright citizenship, that offspring will owe allegiance.
More to the point, in 1898 the Supreme Court expressly rejected Oil Capital's argument in
United States v. Wong Kim. In
Wong, the Court held that in spite of the fact that Federal law prohibited Chinese nationals from obtaining citizenship via naturalization, the only persons excluded from birthright citizenship were persons born to foreign rulers and diplomats, persons born on foreign ships, and persons born to foreign military forces engaged in hostile occupation of United States territory, along with the previously mentioned exception of members of Indian tribes. The fact that Wong's parents owed allegiance to the Emperor of China was irrelevant, as was the fact that Wong also owed allegiance to the Emperor.
The
Wong opinion contains a long discussion showing beyond any serious contention that birthright citizenship was inherited from English Common Law and recognized from the very earliest days of our Country. The Dred Scott decision limiting birthright citizenship to offspring of parents who were themselves citizens was a departure from previous jurisprudence. The 14th Amendment restored the status quo. Here's a link to the
Wong opinion:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.htmlIf, as the TulsaNow constitutional scholars seem to be claiming, the 14th amendment clearly means that all babies born on US soil are automatically citizens of the US, then what is the meaning of the restrictive language "and subject to the jurisdiction thereof"? Is it just there for decoration? If it means nothing more than the Black's Law Dictionary of jurisdiction, it is indeed nothing more than decoration. An odd approach to constitutional construction.
During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding American Indians who maintain their tribal ties, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." He was supported by other senators, including Reverdy Johnson and Senate Judiciary Committee Chairman Lyman Trumbull.[6] Howard further stated the term jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[6] and that the United States possessed a "full and complete jurisdiction" over the person described in the amendment.[7][8][6]
Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
